The Chairwoman could not explain or defend the bill or even answer the simple question I posed at the outset of my testimony:

What exactly is the problem at the DWQI that this bill seeks to correct?

It is rare for a highly controversial, technically complex, and major policy bill to emerge literally out of nowhere, and be heard without explanation of what the bill is intended to do from the sponsor or Committee Chair.

It is ever more unusual for such an obviously unpopular and controversial chemical industry bill to take harsh testimony from environmental groups and get released from Committee by unanimous vote.

Despite all this, the bill was released anyway.

BUT, before voting to release the bill, Committee member Barnes and Chairwoman Spencer both acknowledged that there were problems with the bill, mentioned that they spoke with Assemblyman Burzichelli, and pledged that he would address my concerns – and those raised by others (see: Dems Do Christie’s Dirty Business For Him).

That did not happen -my concerns were not addressed and the bill was made even worse by Assembly floor amendments adopted just 11 days later on January 28, 2013.

So, it looks like the bill is greased and being rammed through the Assembly before public awareness can be built and effective public opposition mounted.

While the issues raised by the bill are complex and it was obvious that legislators did not understand the bill they were voting for, the rapid floor amendments call into question the commitments made by Chairwoman Spencer and Assemblyman Barnes. Were they duped by Burzichelli and/or chemical industry lobbyists, or did they mislead people?

Let me first address the substance of the floor amendmentsand then explain why they are a “bait and switch”.

I) Floor Amendments

The floor amendments reflect an inaccurate understanding of DEP risk assessment and reinforce the chemical industry’s misrepresentation of the DWQI and DEP scientific practices.

The floor amendments expand the scope and detail of the attack on the science of risk assessment; destroy the independence, objectivity and credibility the DWQI and DEP; and would allow conflicts of interest to undermine the integrity of the science:

The amendments change the parameters the DEP is to use when reviewing information submitted during the call for information period. Under the bill as amended, the DEP would be required to: use a structured, transparent evaluative framework consisting of uniform, objective science-based criteria for systematically evaluating data relevance, quality and reliability; place an emphasis on studies and submissions that comply with Good Laboratory Practice regulations; utilize peer review, standardized protocols, valid test methods, complete datasets, and other appropriate methods to ensure a high degree of scientific quality; and use a consistent and transparent weight-of-the-evidence approach when it is necessary to integrate results from several studies. In addition, when determining study relevance, reliability and data quality, the DEP is to apply uniform criteria, irrespective of the funding source or affiliation of the investigators.

The DEP “parameters” the bill would change would seriously undermine risk assessment. Let’s try to take them one at at a time, in the order they are presented:

The DWQI and DEP risk assessors already do this. The bill creates the false appearance that DEP does not and reflects the Chemical Industry’s false and misleading representations and attacks on DWQI and DEP science.

2. Rely on “studies and submissions that comply with Good Laboratory Practice regulations”

A restriction to studies that meet Good Laboratory Practices (GLP) regulations is not appropriate for the science of risk assessment.

A GLP mandate would exclude much of the science now conducted on chemical effects.

GLP refers to laboratory studies which excludes human epidemiology studies as well as many other studies of similar or superior scientific value. Epidemiological studies, in fact, are even more relevant for risk assessment than GLP studies.

The DWQI and DEP already use “standardized protocols, valid test methods, complete datasets, and other appropriate methods to ensure a high degree of scientific quality”. DEP scientists serve on EPA and national risk assessment workgroups and their work is nationally – even globally – recognized.

I am not certain whether peer review is always used in all cases for all scientific assessments that could fall under this bill.

Formal peer review is a labor intensive and can delay work.

More importantly, given the politically charged nature of risk assessments, it is likely that any peer review findings will be used by the chemical industry to manufacture or exaggerate uncertainty and undermine the science in order to delay or derail scientific and regulatory outcomes. This is why the chemical industry is pushing these requirements.

While peer review is frequently used, peer review is not always necessary and should not be mandated by legislation.

Scientific judgements about if and when and how to use peer review should be made by scientists, and not legislated.

4. “consistent and transparent weight-of-the-evidence approach when it is necessary to integrate results from several studies”

5. “when determining study relevance, reliability and data quality, the DEP is to apply uniform criteria, irrespective of the funding source or affiliation of the investigators. “

This is a blatant attempt to force consideration of industry backed – and often junk – science.

It also raises major issues of bias, scientific integrity, and conflict of interest.

The practice of science must not be controlled by legislation written by chemical industry lobbyists.

II) Bait and Switch

Now, to the “bait and with” issue and exposure of the nasty games Assemblyman Burzichelli and his chemical industry friends are playing.

Burzichelli sponsored two very similar bills on this same issue: A2123 (introduced on January 30, 2012) and A2884 (introduced on May 10, 2012). In fact, the Legislative website states that they are “identical” – but they are not.

See the summary above and note that A2884 is far worse than A2123 because it is a broader, more precise, and chemical industry friendly attack on science.

A glance at the dates of introduction of the bills and the different committees they were referred to expose the game.

A2123 (introduced on January 30, 2012) was referred to the Environment Committee, a Committee closely watched by environmental groups and the media. That is not a friendly place for a bill sponsored by and essentially written by the chemical industry.

So, in a blatant effort to bypass the high profile and likely hostile Environment Committee, five months later Burzichelli sponsored an even WORSE bill, A2884, and somehow convinced the Assembly Speaker Oliver to refer it to Burzichelli’s own committee that he Chairs, Assembly Regulatory Oversight. [Correction – Burzichelli is no longer Chair of Regulatory Oversight. Ramos is current Chair. Burzichelli was promoted to Chair of Budget Committee – sorry for that error.]

I have testified before that Committee, but it is not closely watched by environmental groups and the media s NEVER there.

So, after playing this dual bill – dual Committee game, Burzichelli and his chemical industry friends managed to convince Speaker Oliver to get the bill posted and heard in the Environment Committee.

I would love to know the inside story on that deal.

Then, Burzichelli doesn’t even show up to explain is bill, it gets strong across the board criticism, and the Chairwoman is embarrassed and basically forced to hold her nose and move the bil out of Committee, but with a promise that it would be amended on the floor to address numerous problems raised in testimony.

So, what does Burichelli do? Does he reach out to critics (myself) and soften or abandon his outrageous bill?

Nope. He doubles down and does even more hostile floor amendments – a huge bait and switch!

III) Future Prospects

It looks like the bill would pass the Assembly, unless Dems can figure out what’s going on (assuming they are not in the tank for the chemical industry).

There isa much different picture on the Senate side.

My sense is that he may get away with this crap in the Assembly, but that the bill will die in the Senate.

Senate Environment Committee Chairman Bob Smith is a trained chemist, and he understands the science. I can’t imagine Smith putting this bill up, even if Sweeney breaks his arm.

Senate Legislative Oversight is Chaired by Gordon, who wouldnt do it either.

Hi Bill, thanks. Just to make green friendly readers feel a little better after reading your post, let me reassure them that their policy area is not the only one being dominated by the coporate definitions of things, as your link to the NY Times Op-Ed piece on the missing clinical trial data in the medical area shows.

As we’ve learned the hard way in the great financial crisis, the very independence and standing of regulators and potential whistlebloweers has been undercut if not wiped out by the presumptions and preferences the two parties give to the private sector’s construction of reality. What’s next: injection wells to dispose of industrial wastes underground? And no, we’re not talking about fracking this time. Where’s the limit?